People v. Acosta

Appellate Division of the Supreme Court of New York, First Department · 2025 · Criminal Law

2025 NY Slip Op 04527 (2025)

Updated August 1, 2026

Criminal Lawproximate causeSecond Amendmentgun licensingappeal waiverstandingBruengun license

Facts

Defendant was convicted of attempted criminal possession of a weapon in the second degree. On appeal, he argued that his weapon-possession conviction and the ban on large capacity ammunition feeding devices were unconstitutional under Bruen. He had not applied for a gun license and asserted only conclusorily that applying would have been futile because he did not meet the minimum age requirement. At sentencing, surcharges and fees were imposed.

Issue

Whether defendant could challenge his weapon-possession conviction and related firearms restrictions under the Second Amendment despite his appeal waiver and despite not applying for a gun license, and whether the appellate court should disturb the sentence-related monetary assessments.

Rule

A valid waiver of the right to appeal forecloses review of covered claims, including a constitutional challenge to a weapon-possession conviction and an excessive sentence claim. Independently, a defendant who did not apply for a gun license lacks standing to challenge New York's gun-licensing regime unless he makes a substantial showing of futility sufficient to excuse the threshold standing requirement; a conclusory futility claim based on age is insufficient where the statute allows exemptions under certain conditions.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Manhattan, Diego Mendez pleaded guilty to attempted criminal possession of a weapon after police recovered a handgun from his backpack. As part of the plea, the judge conducted a proper colloquy and Diego executed a valid waiver of his right to appeal; he later argues on appeal that the weapon-possession statute violates the Second Amendment.

How should the appellate court most likely rule on Diego's constitutional challenge?

Explanation. Under the majority opinion, a valid waiver of the right to appeal forecloses review of a covered claim that a weapon-possession conviction is unconstitutional under the Second Amendment. The court treated the constitutional challenge as barred by the valid waiver.